Revocation of Fraudulent Act against a secondary taxpayer

In light of the fact that it was anticipated that the secondary taxpayer would be liable to pay the tax of this case because the non-party company had no particular property at the time of the donation contract, etc., it is reasonable to deem that the contract of this case would harm other creditors including the plaintiff.

Article 406 of the Civil Act

1. The contract of donation concluded on November 25, 2005 between the defendant and the non-party ○○ on real estate indicated in the separate sheet shall be revoked within the limit of KRW 315,00,000.

2. The defendant shall pay to the plaintiff 315,00,000 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of complete payment.

3. The plaintiff's remaining claims are dismissed.

4. The costs of the lawsuit are assessed against the defendant.

The disposition of Paragraph (1) and the defendant shall pay to the plaintiff 315,000,000 won with 20% interest per annum from the day following the day when this judgment is finalized to the day of complete payment.

1. Basic facts

The following facts are not in dispute between the parties, or may be recognized by comprehensively considering the whole purport of the pleadings in each entry in Gap evidence 1 through 11 (including each number), and there is no counter-proof.

A. From February 14, 2005 to March 31, 2005, the head of ○○ Tax Office, under the Plaintiff’s control, conducted a tax investigation with respect to ○○ Company (hereinafter “Nonindicted Company”) and notified the Nonparty Company of the decision of correction of the corporate tax and value-added tax in 2002, 204, 2004, 2005, 2005, 2005, 2005.

B. However, on April 8, 2006, the non-party company did not pay the above taxes, and the director of the tax office, the director of the tax office, the representative director and the shareholder of the non-party company, designated the non-party company as the secondary taxpayer under Article 39 of the Framework Act on National Taxes and notified the non-party company that the non-party company should pay the aggregate of the additional dues. At that time, the above notification reached the non-party company, and accordingly, the corporate tax and the value-added tax (including additional dues; hereinafter referred to as the "tax of this case") to be paid by the non-party company is KRW 919,575,650 as of January 8, 2007.

C. On the other hand, on November 25, 2005, ○○○ donated (hereinafter referred to as “the instant gift contract”) the real estate listed in the separate sheet owned by the Defendant, the mother’s mother, to the Defendant (hereinafter referred to as “the instant real estate”). On the same day, the ownership transfer registration of the instant real estate was made under the name of the Defendant. At the time, ○○ did not have any specific property other than the instant real estate.

D. However, on September 23, 2004, the registration of creation of a neighboring mortgage (the maximum bond amount of KRW 260,000,000, and the Hanmi Bank Co., Ltd.) which was completed on the instant real estate as of September 23, 2004 was cancelled on the ground of termination on September 20, 206, which was after the donation contract of this case. Meanwhile, the market price of the instant real estate was KRW 575,00,000 as of September 11, 206.

2. Determination

(a) the existence of preserved rights;

The second liability to pay taxes is established separately from the main liability to pay taxes, and it is abstractly established by the occurrence of legal requirements, such as shortage of collection amount to the main liability to pay taxes, and it is determined by the notice of payment stipulated in Article 12 of the National Tax Collection Act by notifying the second liability to pay taxes (see, e.g., Supreme Court Decision 89Meu24872, Dec. 26, 1990). Since it is possible for the Plaintiff to pay corporate tax and value-added tax as the second liability to pay to the ○○○ upon April 206, which is after the conclusion of the gift contract of this case, the above notice reached ○○○○ as the first liability to pay corporate tax and value-added tax, and thus, it cannot be said that the tax claim of this case against the ○○○○○ was established at the time of this case’s donation contract of this case, which is close to the Plaintiff’s right to pay taxes, and thus, it cannot be said that the claim of this case was established in the future.

B. Establishment of fraudulent act

As seen earlier, the second taxpayer at the time of the instant donation contract was highly probable to establish the instant tax liability, while this ○○○○, which had no property other than the instant real estate, donated the instant real estate to the Defendant and caused the lack of public security of general creditors including the Plaintiff, barring any special circumstances, the instant donation contract constitutes a blind-down, barring special circumstances. This ○○ appears to have been aware of the fact that the said corporate tax and value-added tax were imposed on the non-party company as the representative director of the non-party company. In light of the fact that at the time of the instant donation contract, the non-party company did not have any specific property, and this ○○ could have anticipated that the non-party company would be liable to pay the instant tax as the second taxpayer.

It is reasonable to view that ○○ was aware of the harm of other creditors including the Plaintiff due to the instant donation contract, and the Defendant, the beneficiary, also, is presumed to have concluded the instant donation contract with the knowledge of such circumstances.

(c) Methods of reinstatement and scope of cancellation;

In the event that real estate on which a mortgage is established is transferred to a fraudulent act, such fraudulent act shall be deemed to be established only within the extent of the balance obtained by deducting the secured debt amount from the value of the real estate. Thus, if the registration of creation of a mortgage is cancelled by payment after a fraudulent act, etc., it may take a fraudulent act and seek compensation for the value thereof within the extent of the balance obtained by deducting the secured debt amount from the value of the movable property. The value of the gift of this case shall be calculated based on the time of the conclusion of fact-finding proceedings. The Defendant’s cancellation of the secured debt amount of KRW 260,00,000 established on the real estate of this case after acquiring the ownership of the real estate of this case, and the market value of the real estate of this case was 575,00,000 as of September 11, 206. The Plaintiff’s assertion that the above secured debt amount of KRW 20,000,000,000,000 per annum after deducting the secured debt amount of this case from the actual maximum debt amount of KRW 50,000.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.